Tribunal File Number: 16-000218/AABS
Case Name: 16-000218 v Aviva Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
And in the matter of a motion brought by the respondent seeking an order dismissing the Application as the incident giving rise to the accident benefit claimed does not meet the definition of an accident as set out in s. 2(1) of the Statutory Accident Benefits Schedule - Accidents On Or After November 1, 1996 O. Reg. 403/96 (the “Schedule”)
Between:
Applicant by her Litigation Guardian
Applicant
and
Aviva Insurance
Respondent
Decision
ADJUDICATOR: Ruth Gottfried
Hearing in Writing Only:
For the Respondent: Roberts H. Rogers, Evans Philp LLP
For the Applicant: Anandi D. Naipaul, Ross & McBride LLP
HEARD: October 24, 2016
Reasons for Decision and Order
Overview
1The facts in this case are not in dispute. The parties submitted an agreed statement of facts, which I have redacted for identifying information and summarized below.
2The applicant was involved in an accident1 that occurred on April 16, 2009.
3The applicant was 7 years old at the time and a student in elementary school. She suffers from cerebral palsy and quadriplegia, spastic type. She is confined to a wheelchair and has special needs. She is fully vocal but her CP causes her speech to be affected by stress and anxiety.
4The applicant was transported daily to school from September 2008 to April 16, 2009 by a school bus driver (“the driver”).
5On April 16, 2009, the driver arrived with the school bus at the applicant’s home. She parked the bus, shut it off, went to the back of the bus, opened the door, lowered the ramp and loaded the applicant onto the ramp. The driver then put the seatbelt around the applicant and raised the ramp. She then went inside the bus, brought the applicant inside the bus from the rear, attached the seatbelt and strapped down all four corners of the wheelchair. The applicant was the only child on the bus.
6The driver did not deliver the applicant to school. Instead, the driver drove to her own [the driver’s] house. The applicant was aware that the driver was taking an abnormal route. This caused the applicant to become anxious and frightened and she became short of breath. When she is scared or anxious, she has difficulty communicating with words that are understandable.
7The applicant became increasingly anxious when the bus entered and stopped on the driver’s driveway. The driver then exited the bus, locked it, got into another vehicle and drove away. There were no alarms on the bus that the applicant could trigger.
8By the time the driver was notified by her dispatcher that the applicant had not arrived at school, the applicant had been left on the bus, alone and unattended, for approximately 2 hours, during which time her psychological status deteriorated.
9The fact statement indicates that the applicant sustained psychological and mental injuries and impairments as a direct result of being abandoned on the school bus.
10On May 10, 2016, the applicant filed an Application for Auto Insurance Dispute Resolution at the Tribunal (“Tribunal”) with respect to denied requests for accident benefits.
11The respondent (“Aviva”) then raised the preliminary issue that the incident giving rise to the claim for accident benefits does not meet the definition of “accident” as this term is defined in the Schedule.
The Issue in Dispute
12The only issue put forward at this Preliminary Issue Hearing is to determine if the incident of April 16, 2009 involving the applicant, qualifies as an accident as defined in section s. 2(1)2 of the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996 O. Reg. 403/963 (the “Schedule”).
13If it is determined that the incident giving rise to this accident benefit claim meets the definition of accident as defined in the Schedule, the parties will be notified to convene another case conference before the Tribunal to determine the benefits to which the applicant is entitled.
The Positions of the Parties
14Both parties referenced the “two-part test” that currently forms the basis of jurisprudence regarding the determination of whether an incident is an “accident” as defined in the Schedule. The two-part test involves a purpose test and a causation test.
15The applicant argues that she meets both tests and the incident should be categorized as an accident under the Schedule. A finding for the applicant would mean that she could claim entitlement to accident benefits for impairment(s) arising out of the accident.
16Aviva submits that the subject incident did not arise out of the ordinary “use and operation of an automobile … [and] as such, the purpose test is not satisfied and the analysis should end there.”
17A decision in favour of Aviva would mean that the applicant could not claim entitlement to any accident benefits under the Schedule.
Result
18After reviewing the submissions of both parties, I find that the incident of April 16, 2009 involving the applicant is an accident as defined in the Schedule.
The Law
19This two-part test was originally formulated in the Supreme Court case of Amos v. Insurance Corp. of British Columbia4 (“Amos”). The test required that both a purpose test and causal link, should be applied:
a. did the accident result from the ordinary and well‑known activities to which automobiles are put, and if so,
b. was the relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, causal or was it merely incidental or fortuitous.
20While the purpose test has remained relatively constant, the causation test has undergone substantive change. I will discuss both tests in greater detail below.
21The current causal test was restated in Chisholm v. Liberty Mutual Group5 (“Chisholm”), and followed in most cases since Amos, particularly in three Ontario Court of Appeal decisions referenced by both parties: Greenhalgh v. ING Halifax6 (“Greenhalgh”), Martin v. 2064324 Ontario Inc. (Freeze Night Club)7 and Economical Mutual v. Caughy8 (“Caughy”).
22At this time, in order to succeed in her claim, the onus is on the applicant to:
Establish that the use or operation of the vehicle was the cause of the injuries; (the purpose test); and
Satisfy the Tribunal that there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. In other words, the question (under the causation test analysis) is whether it could be said the use or operation of the vehicle was a “direct cause” of the respondent’s injuries. (the causation test)
The Purpose Test
23The first step of the analysis is the “purpose test” – did the incident arise out of the use and operation of an automobile. If the answer is “yes”, then the second step of the analysis is required – the “causation test”. Did this use and operation of the automobile directly cause the impairment?
24The Amos purpose test can be summarized by the question: Did the accident result from the ordinary and well-known activities to which vehicles are put?
25For ease of use, Aviva suggests the simpler wording used in the Court of Appeal’s decision in Greenhalgh stating the purpose test as “for what purpose was the automobile being used or operated at the relevant time?”
26The purpose test has remained consistent, despite the changes in legislation. If the purpose test is not met, then the second part of the analysis – the causation test – is moot.
Positions of the Parties on the Purpose Test
Aviva’s Position on the Purpose Test
27Aviva properly states that in the case at bar, the vehicle involved in the incident is a bus used to transport disabled children to and from school, which, inter alia, involves the loading and unloading of children for this purpose.
28It goes on to say that had the applicant been injured during loading or unloading then the injuries would have resulted from the ordinary use and operation of the bus. However, since the applicant’s injuries occurred after she was left in the parked bus it cannot be said that a bus is ordinarily used as a means for abandoning children. It also submits that abandoning a child in a bus does not fall within the parameters of transporting disabled children to and from school.
29I agree with Aviva’s position that the “ordinary use” of the bus is to transport disabled children to and from school. Further, I agree that transporting the children “involves” the loading and unloading. However, I submit that the ordinary use of the bus is not restricted to getting on and off it.
30Aviva refers to the reasoning of Justice Ritchie in Reliance Petroleum Ltd. v. Stevenson9 (“Reliance”) to support its position that had the injury to the applicant occurred during on or off loading, then that would be considered to have occurred in the ordinary use and operation of the bus.
31Reliance involved the negligence of a driver of a tank truck who left his truck unattended while discharging gasoline to a service station’s tank. This led to the gasoline overflowing, igniting and destroying the premises. The question in that case was whether the incident arose out of the “ownership, use or operation of the automobile”.
32Justice Ritchie does discuss the difference between the words “use” and “operation”. He states that because the legislation includes both the word “use” and “operation” that there may be instances when the words are not synonymous and should be read as having separate meanings.
33However, in Reliance, Justice Ritchie questions10 whether the negligence of the employee was in the course of work other than that of his operation or use of the truck. He further states, “delivery was as much a part of what was being done by means of the truck as the carriage”.
34With reference to the facts before Justice Ritchie, but analogous to the one before me is the following statement:
Did the fire result from negligence in delivering the gasoline? I cannot see how that can be seriously doubted…. [the driver’s actions] constituted negligence in relation to the use of the truck in discharging the gasoline. That was part of the function of the tank truck and does not [emphasis added] come within the class of differentiated uses.11
35He goes on to state that there are situations where the terms “use” and “operation” are “analogous”. Interestingly, the very example he uses is that of a bus. He states:
The undertaking in such a case includes the entrance and exit to and from the bus of passengers. If the steps are defective and a passenger is injured, could it be said that injury did not arise out of the “use”? The expression “use or operation” would or should, in my opinion, convey to one reading it all [emphasis added] accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service.12
36Although Aviva has used Reliance to support its position, I find the case more supportive of the applicant’s position. Using “common judgment in ordinary language”, it is clear that the ordinary use of a school bus is taking children back and forth from home to school, including getting on and off the bus.
37I disagree with Aviva’s leap of logic that since the applicant was abandoned on the bus and abandonment does not “fall within the parameters of transporting disabled children to and from school” that the bus was not being used in its ordinary and well-known activity.
38In Irving and CGU Insurance Company of Canada13, D.D. Evans goes on to quote Director’s Delegate Makepeace who noted that the broad interpretation given to “use or operation” extends beyond driving.
39Aviva also raises the fact that the applicant remaining on the bus is not responsive to the question whether the ordinary and well-known purpose of the school bus had ended.
40It seems self-evident that when the school bus takes the children off the bus at either end of the line, it has fulfilled its ordinary and well-known purpose.
41In the case at bar, the children being transported were by definition, disabled in some way. The applicant could not get off the bus by herself and therefore, was still using the bus in its ordinary purpose - to get to school.
42Aviva believes the purpose test was not satisfied and therefore the analysis should end there.
43I respectfully disagree. Part of the ordinary use of disabled transport is that the rider must be loaded and secured and must remain so until the reverse process takes place. The applicant was in the process of being taken by the bus to school. Because of her disability, it is the submission of the applicant, with which I agree, that the use of the school bus ended when she was unbuckled from her seat and unloaded in her wheelchair out of the bus. The plain and simple fact is that this did not happen.
44Both Aviva and the applicant move somewhat off point into the area of the type of insurance coverage that the school bus may or may not have had. This question is not before me, and I give no notice or weight to it.
The Applicant’s Position on the Purpose Test
45The applicant has cited several FSCO cases in support of her position. The common factor in all the cases is that they extend the term “use or operation” to incorporate activities beyond driving, including getting into or out of an automobile, loading and unloading cargo, refuelling, changing a tire and others.
46Although I agree with the applicant that the purpose test is satisfied in this case, I do not find that the cases the applicant has submitted in support of the case before me, are entirely analogous. As both the applicant and Aviva point out, the insured was in the business of providing transportation services for special needs children and the ordinary, well-known activity and purpose of the bus was to transport disabled children from their homes to the school or vice versa.
47The applicant also argues that it was her “expectation” to be taken from home to school by the bus. As Justice Labrosse highlights14, both intent and expectation are clearly part of the purpose test.
48The applicant argues specifically that the intent of the vehicle was to bring children back and forth to school. I agree with the applicant that the driver was still in the process of completing this activity when she [the applicant] sustained her injuries. I also agree with the applicant’s statement that when the applicant “was abandoned on the bus, the use or operation of the bus continued, despite the absence of the driver”.
The Causation Test
49Prior legislation had referred to injuries that arose directly or indirectly from the use and operation of a vehicle. With the revision of the Schedule for accidents on or after November 1, 199615 the word “indirectly” was removed from the definition of “accident”.
50In Chisholm, Justice Laskin states16 that since the word “indirectly” has been removed from the legislation, the causation test as set out in Amos can no longer be used. The key aspects of the new causation test are set out in the following cases.
51Justice Labrosse, in Greenhalgh17, suggests a new three-prong test that can now be useful guidance in determining the issue of causation:
Prong 1: the “but for” test
Prong 2: an intervening cause that may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile
Prong 3: was the use or operation of the automobile the dominant feature of the incidentThe purpose test asks if the incident arose out of the ordinary and well- pick up and transport passengers.
52Justice Labrosse continues18 that Justice Laskin was clear in Amos that the “but for” test only serves to eliminate from consideration factually irrelevant causes, but does not conclusively establish legal causation.
53In Downer v. The Personal Insurance19 (“Downer”) Justice Laforme writes20:
Under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.
Positions of the Parties on the Causation Test
Aviva’s Position on Causation
Prong 1 – But For Test
54The parties are in agreement that the first prong of the causation test, referenced as the “but for” test, has been met. But for the involvement of the school bus the applicant would not have suffered any injuries.
55However, Aviva highlights the proviso made by Justice Laskin in Chisholm21, that the but for test does not conclusively22 establish legal causation.
Prong 2 – Is there an intervening act that breaks the causation link?
56Aviva relies on Chisholm to support its position that there is an intervening act in this case. In the Chisholm case an unknown assailant fired gun shots at Chisholm while he was driving his wife's car. He was rendered a paraplegic. He was refused accident benefits from his wife's insurer. He sued. The insurer sought a determination of the question whether "the use or operation of an automobile directly caused" Chisholm's injuries. A motions judge held that the direct cause of his injuries was the gun shots, not the use or operation of a motor vehicle. Chisholm appealed. The Ontario Court of Appeal dismissed the appeal.
57Aviva references23 the court in Chisholm24 as saying that the “shooting constituted an intervening act, independent of the vehicle’s use or operation”, thus disentitling Mr. Chisholm to accident benefits.
58However, in the same paragraph25 in Chisholm, the court sets out the Black’s Law Dictionary definition of direct cause on which they have relied:
The … active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.
59Chisholm is distinguishable from the case at bar for exactly the reason articulated by the above definition: there is no evidence before me that the applicant’s injuries were caused by a new and independent source. The train of events that brought about the resulting injuries to the applicant was the school bus pick-up of the applicant at her home, the bus going off course, and the applicant’s abandonment at the driver’s home. The trip was in progress and the bus was being used in its ordinary operation. There was no intervention from a new and independent source.
60According to the agreed statement of facts, the applicant’s injuries began when she became aware that the driver was taking “an abnormal route”. The applicant became “anxious”, “frightened” and “short of breath”. She had “difficulty communicating with words that are understandable”. She became “increasingly anxious” [emphasis added] when the bus entered and stopped on the driver’s own driveway. The time alone on the bus caused the applicant’s psychological status to deteriorate, but that is clearly the end of the unbroken chain of events, not an intervening event from a new and independent source.
61Aviva cites Law Union & Rock26 as a case similar to the case at bar. In that case Moore’s Taxi had a contract to transport disabled children to and from school. However, in that case the taxi had arrived at its destination and the driver negligently parked on the opposite side of the street. Tragically, when the passenger child attempted to cross to the opposite side he was hit by a truck and suffered serious injuries.
62The similarity between Law Union and the case before me starts and ends with the transportation of disabled children to and from school. In Law Union Justice Ritchie makes it clear that the injury occurred “after the boy left the stationary vehicle and was standing unharmed on the sidewalk facing the potential peril of crossing the street alone…” The taxi had reached its destination but the driver acted negligently by parking on the opposite side of the street and then not getting out to help the boy cross safely. In the case before me, the school bus had not yet completed its purpose as it had not yet reached its destination.
63Justice Ritchie also states that there is a clear distinction between this case [Law Union] and Stevenson. In the Stevenson case, the entire delivery operation was effected in the course of using the motor vehicle in question, which I find parallel to the case at bar.
64In Law Union, the taxi had completed its stated purpose and then, and only then, did the drive behave in a negligent manner.
Prong 3 – The dominant feature test
65Aviva submits three cases turning on the third prong of the causation test – the dominant feature test.
66Aviva suggests a review of Chisholm where the Court of Appeal applied the test and concluded that it was gun shots and not the use of the vehicle that were the dominant feature of the insured’s injuries.
67Secondly, it references Greenhalgh, where the dominant feature of the insured’s injuries could be characterized as exposure to the elements.
68Thirdly, is the case of Longley v. General Motors27 (“Longley”). In this case, Ms. Longley was using her truck’s tailgate as a stepping stool to reach her jacket, when the tailgate gave way to due to a faulty mechanism. The Court determined that although she fell from the truck it was not the dominant feature of the accident, “although it was certainly part of the chain of causation”.28
69I do not believe that any of these cases are analoguous to the case before me and illustrate only various examples of what the case at bar is not.
70Aviva states29 [the driver’s] negligence directly caused the applicant’s injuries. I cannot argue that the driver was inconceivably negligent in her actions. However, from all the facts before me, I concur with the applicant that it was through the use and operation of the school bus that she demonstrated that negligence.
The Applicant’s Position on Causation
Prong 1 – But For Test
71The applicant states that the causation test consists of two parts:
a. Was the use or operation of the vehicle a cause of the injuries? (“but for” test)
b. If the use or operation of the vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the ordinary course of things?
72The applicant relies on Justice Laskin’s statement in Chisholm30 that the "but for" test of causation serves as an exclusionary test. Its purpose is to eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome. If the but for test is not met then the injury would have occurred regardless of the act or omission in question. If the but for test is met then the act or omission in question is a factual cause of the injury.
73It appears from all of the submissions that both parties are in agreement that the “but for” test is met.
Prong 2 – Intervening Act
74The applicant then moves on to the second part of the causation test – an analysis of whether there was an intervening act.
75The applicant submits that there was no intervening act, which emanated from a new and independent source. “The negligent behaviour of the bus driver is not disconnected from the use or operation of the vehicle.” Although the applicant concedes that “at best, there are multiple causes at play”, her [the applicant’s] presence in the school bus is “a dominant feature of the loss”.
76The applicant references two cases31 where the injury occurred after the use or operation of the vehicle had ended and it was deemed that under the legislative criteria no “accident” had occurred. In the case before me, I agree with the applicant that the use of the vehicle had not ended, so at best, these cases are illustrative of why the case at bar should be considered an accident.
77The applicant provides six cases32, with a variety of situations that I do not find analogous to the case before me. The cases are neither helpful nor unhelpful.
78The applicant also references the Lefor33 case. The wording of the legislation at the time of this case included injuries that arose directly or indirectly [emphasis added] from the use and operation of a vehicle. Justice Sharpe, in fact, bases his decision on the principles enunciated in Amos.34 However, in the Lefor case the injuries to the plaintiff were caused by a third party’s vehicle and it was concluded that the nexus of causation involved the mother’s vehicle, which had brought the plaintiff to the location of the accident. The Court determined that the “accident occurred at least indirectly from the use of the … vehicle in question”. While this case on the surface does not seem to strengthen the applicant’s position, Justice Sharpe has used one sentence that sums up the case at bar: “The accident occurred as a result of the use of Ms. Lefor's vehicle as a means of conveying passengers from one place to another”.35 In my opinion this is the exact nexus in the chain of causation in the case at bar. It is the unbroken link between the school bus and the applicant’s injuries.
Prong 3 – Dominant Feature
79The applicant did not list or address the third “prong” of the causation test – the “dominant feature” test that the Court in Greenhalgh suggested might be useful in some cases to question if the use or operation of the vehicle was the dominant feature of the accident.
80In its reply submissions, Aviva notes that the applicant did not set out the causation test with three separate “prongs”: the “but for” test; the “intervening act” test; and the “dominant feature” test.
81It is true that the applicant did not address the “dominant feature” as an independent prong. Aviva suggests that unless separated, the analysis can become “unnecessarily confusing and easily run off course”. While I may not have agreed with all of the applicant’s submissions, I did not find them confusing or “off course”. I therefore find that the blending of the intervening act test with the dominant feature test was not fatal to the applicant’s submissions.
82The applicant has the onus to prove that the use and operation of the vehicle was directly responsible for her injuries. This was fundamentally accomplished in the agreed to statement of facts: the applicant’s injuries began while the school bus was still driving her to school and began to take a different route. From that point forward, the applicant’s injuries were exacerbated.
83I agree with the applicant that the dominant feature of the injury was the psychological impact of the bus ride.
Analysis
84There is no doubt that this is a difficult case. I have weighed the evidence, case law and submissions of both parties and base my decision on those criteria alone.
85While the purpose test as articulated in Amos still forms part of the analysis, the Ontario Court of Appeal followed the new legislation in a series of cases where the causation test was redefined and subdivided into a three prong approach: the “but for” test; the intervening act test and the dominant feature test.
86In Caughy, the Court of Appeal confirmed that there was no “active use” component in the purpose test. Rather, the issue was whether the incident arose from the ordinary and well-known activities to which a vehicle is put.
87In Caughy36, Justice Hourigan, writing for the Court, asks,
does parking a vehicle constitute the type of aberrant use contemplated by the Supreme Court in Citadel37? In my view, it does not. The examples cited [in Citadel] were limited to circumstances in which a vehicle is not being used as a vehicle but for some other purpose. Parking a vehicle is not aberrant to its use as a vehicle. … I would conclude, therefore, that parking a vehicle is an ordinary and well-known activity to which vehicles are put.
88The applicant has put forward a strong argument that the school bus was engaged in the ordinary and well-known activity to which school buses are put.
89In examining the purpose test, I must determine whether the incident or accident resulted from the ordinary and well-known activities to which vehicles are put. I agree with the applicant‘s position, that the ordinary and well-known activity of a school bus is to deliver children to and from school. As the driver decided for reasons of her own to stop driving, it is not analogous to a change of use. It therefore follows that an injury was suffered before the use of the school bus had ended.
90In my opinion, the applicant has satisfied the purpose test.
91Aviva has tried to encompass all positions in its submissions, and I believe has mixed the purpose test into the causation test. In its reply38, Aviva states that the fact that the applicant “remained on the bus is not … conclusive to a determination of the [causation] issue. It is not responsive to the question whether the ordinary and well-known purpose had ended.
92Both parties are in agreement that the applicant has satisfied the “but for” test. However, this test on its own does not conclusively establish legal causation.
93The next hurdle for the applicant is proving that the accident arose as a direct consequence of the ordinary use of the school bus.
94In its reply39 Aviva confirms that the applicant “continued to ‘use’ the bus, in that she was still sitting on it”. The applicant counters this statement in their submissions when they define the ordinary use aspect of the bus – it takes disabled children to and from school. The applicant had been picked up but not yet delivered to school. It seems self-evident that she continued to use the bus for its ordinary purpose because she had not yet arrived at her regular destination, nor been removed from the bus.
95If the cases provided by both parties hold that accidents, by definition, can occur during the loading and unloading of passengers from vehicles, could the reverse not hold true as well – that the driver failed to unload the applicant, a procedure well within the ordinary use and operation of a vehicle, and thereby caused her injury?
96Further, the agreed facts state that the start of the applicant’s distress and mental deterioration occurred while the bus was still transporting her to school. The psychological injuries were triggered as soon as the bus left its regular route and the applicant recognized the deviation. She started to become anxious and frightened and have difficulty with communication. Being left on the bus only exacerbated the already existing injuries.
97Since the applicant’s physical and emotional distress began while the bus was being used in its undisputed ordinary and well-known purpose, there exists an unbroken causal connection between the use of the vehicle and the injuries suffered by the applicant.
Conclusion
98In my view there was a clear and distinct chain of events, forming one incident without an intervening act outside the normal use and operation of the school bus.
99This distinguishes the applicant’s case from the assault cases, and the cases involving unusual hazards that are either unrelated to use or operation of an automobile (like diving) or that should not be covered by insurance (like racing). Given all that, I find that the dominant feature of the incident was the use and operation of the school bus
100For all of the above reasons, I find that the applicant has suffered an accident as defined by the Schedule.
Order
101Pursuant to the authority vested in it under the provisions of the Act, the Tribunal dismisses the respondent’s motion.
102The parties will be notified to convene another case conference before the Tribunal to determine the benefits to which the applicant is entitled.
Released: July 31 2017
___________________________
Ruth Gottfried, Adjudicator
Footnotes
- Although this is the terminology used in the agreed statement of facts, I am assuming that the word “accident” is used in this context in its ordinary meaning rather than its legislative meaning under the Schedule, which is the preliminary issue at this hearing.
- 2.(1) In this Regulation, “accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device; (“accident”)
- In its submissions, Aviva has quoted section 3(1) as the defining section. This numbering is from the Schedule currently in force - Statutory Accident Benefits Schedule — Effective September 1, 2010 O. Reg. 34/10. In the Schedule in force at the time of the incident, the section number is 2(1) and I have used that reference when referencing the legislation. In my decision, the word “Schedule” should be construed as interchangeable between the two versions as the wording of section 2(1) and 3(1) in their respective versions is identical.
- Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 SCR 405, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1293/index.do
- Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), http://canlii.ca/t/1cskk
- Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), http://canlii.ca/t/1hq8c
- Martin v. 2064324 Ontario Inc., 2013 ONCA 19, http://canlii.ca/t/fvn83
- Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, http://canlii.ca/t/gnzv4
- Reliance Petroleum Ltd. v. Stevenson, 1956 CanLII 27 (SCC), 1956 CarswellOn 83 (SCC) para 11
- Reliance, para 9
- Reliance, para 10
- Reliance para 11
- Irving and CGU Insurance Company of Canada (FSCO P03-00022, November 29, 2004)
- Greenhalgh, para 11 (a)
- O. Reg. 403/96
- Chisholm, para 20
- Greenhalgh, para 12
- Greenhalgh, para 37
- Downer v. The Personal Insurance Company, 2012 ONCA 302, http://canlii.ca/t/fr7t3
- Downer, para 39
- Chisholm, para 25
- The word “conclusively” was omitted in Aviva’s written submission in para 26.
- Aviva’s submissions, para 23
- Chisholm, para 30
- Chisholm, ibid.
- Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd., [1960] SCR 80, 1959 CanLII 81 (SCC), http://canlii.ca/t/22xvt
- Longley v. General Motors of Canada Limited, 2009 ONCA 627, http://canlii.ca/t/25bsp
- Longley, para 12
- Aviva’s submissions, para 43
- Chisholm, para 25
- Webb v. Lombard General Insurance Co. of Canada, [2007] O.F.SC.D. No. 188; Mahadan and Co-operators General Insurance Company,[2001] O.F.S.C.I.D. No. 40
- Seale v. Belaire Insurance Co., [2003] O.F.S.C.I.D. No. 8; Victoria Cooper v. Wawanesa Mutual Insurance Company, [2008] O.F.S.C.D. No. 20; Shantz and Dominion of Canada General Insurance Company, [2002] O.F.S.C.I.D. No. 66; Roberts v. Intact Insurance Company, [2016] O.F.S.C.D. No. 6; Souchuck v. State Farm, [2002] O.F.S.C.I.D. No. 174; Grewal v. Dominion of Canada General Insurance Company, [2003] O.F.S.C.D. No. 20;
- Lefor (Guardian of) v. McClure, 2000 CanLII 5735 (ON CA), http://canlii.ca/t/1cwth
- Lefor, para 8
- Lefor, para 8
- Caughy, para 17
- Citadel General Assurance Co. v. Vytlingam, [2007] 3 SCR 373, 2007 SCC 46 (“Citadel”)
- Aviva’s reply submissions, para 5
- Aviva’s reply submissions, para 6```